United States v. Montijo-Gonzalez

978 F. Supp. 2d 95, 2013 WL 5754860, 2013 U.S. Dist. LEXIS 154603
CourtDistrict Court, D. Puerto Rico
DecidedSeptember 13, 2013
DocketCriminal No. 12-786 (DRD)
StatusPublished

This text of 978 F. Supp. 2d 95 (United States v. Montijo-Gonzalez) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Montijo-Gonzalez, 978 F. Supp. 2d 95, 2013 WL 5754860, 2013 U.S. Dist. LEXIS 154603 (prd 2013).

Opinion

OPINION AND ORDER ADOPTING UNOPPOSED REPORT AND RECOMMENDATION

DOMÍNGUEZ, Senior District Judge.

This case stems from a single count indictment charging defendant with possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) related to the execution of a search warrant on Apartment 62, Building 7, of the Enrique Zorrilla Public Housing Project in Manatí, Puerto Rico (“Zorrilla Public Housing”)(Docket No. 15). The search warrant was issued by a state court judge and it encompassed the search of all twelve apartments of Building 7, Apartments 57 to 68 of the Zorrilla Public Housing for the purposes of locating and/or seizing controlled substances (Docket No. 29). The search warrant was supported by an affidavit proffered by Puerto Rico police officers and by an internal security guard of the Zorrilla Public Housing.

Pending before this Court is a motion to suppress the firearm seized during the search of Apartment 62 and the incriminating statements regarding the firearm made by Defendant after his arrest (Docket No. 29). As to the firearm seized in Apartment 62, Defendant challenges the legality of the search warrant alleging violations to his rights under the Fourth Amendment. Defendant also seeks to suppress the incriminating statements as to the seized firearm which he made after his arrest alleging that those statements were “fruit of the poisonous tree” because they were obtained as a result of violations to Defendant’s Fourth Amendment rights. Lastly, Defendant requests an evidentiary hearing to discuss suppression matters.

The Government opposed the motion to suppress, alleging Defendant lacks standing to challenge the legality of the search warrant because he is not the lessee of Apartment 62 and because he did not proffer evidence of his status as an “invited guest” of Apartment 62. The Government also opposed Defendant’s request for evidentiary hearing arguing that Defendant failed to raise a genuine issue as to a material fact that would warrant an evidentiary hearing (Docket No. 37).

The motion to suppress was referred to Magistrate Judge Marcos E. López for a Report and Recommendation (“R & R”) (Docket No. 34). Magistrate Judge Marcos E. López issued his R & R, recommending that the motion to suppress be denied1 [99]*99(Docket No. 47). The Magistrate Judge found that, at this stage of the proceedings, the Court was unable to make a determination as to Defendant’s standing to challenge the validity of the search warrant under the Fourth Amendment because Defendant’s “assertions are not supported by an unsworn statement under penalty of perjury or affidavit” or by any other documentary evidence to such effect (Docket No. 34, page 2). Thus, the Magistrate Judge’s recommendation to deny the motion to suppress is based in part on the existence of probable cause for the issuance of the search warrant and on the applicability of the good-faith exception to the exclusionary rule.

Instead of filing an opposition to the R & R, Defendant filed a motion for reconsideration of the same alleging that the Magistrate Judge failed to consider Defendant’s reply to the Government’s opposition to the motion to suppress. Defendant also requested the Court to vacate the deadline for submitting the opposition to the R & R until the Magistrate Judge ruled on the motion for reconsideration (Docket No. 51). The motion for reconsideration was denied because the allegations included in Defendant’s reply (i.e., standing to challenge search warrant; necessity of probable cause for issuance of search warrant; and good faith exception to the exclusionary rule (Docket No. 44-1)) were all addressed and sufficiently discussed in the R & R (Docket No. 52). The Court notes that the Magistrate Judge did not address Defendant’s request for vacating, or rather enlarging, the period to file oppositions to the R & R in his Opinion and Order denying the motion for reconsideration. The Court further notes that Defendant failed to file an opposition to the R & R after the Magistrate Judge ruled on the motion for reconsideration.

Upon review of the R & R issued by Magistrate Judge Marcos E. López (Docket No. 47), and taking into consideration that Defendant failed to oppose it, the Court hereby ACCEPTS, ADOPTS and INCORPORATES the R & R as outlined below.

I. MAGISTRATE’S REPORT AND RECOMMENDATION

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See also Fed.R.Civ.P. 72(b); D.P.R. Civ. R. 72(a), Local Rules, District of Puerto Rico; and Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Nonetheless, an adversely affected party may contest the Magistrate Judge’s Report and Recommendation by filing its objections to the recommendations made. Fed.R.Civ.P. 72(b). In such respect, 28 U.S.C. § 636(b)(1), in pertinent part, provides that:

[wjithin fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the [100]*100findings or recommendations made by the magistrate judge.

(Emphasis added).

“Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Additionally, “failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objections are precluded upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in a magistrate’s recommendation, as well as the magistrate’s failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[objection to a magistrate’s report preserves only those objections that are specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”); United States v. Valencia,

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Bluebook (online)
978 F. Supp. 2d 95, 2013 WL 5754860, 2013 U.S. Dist. LEXIS 154603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-montijo-gonzalez-prd-2013.